Smith v. Simpson ( 1869 )

The opinion of the court was delivered, by

Agnew, J.

— The city tax was $25.10, and the sale in the proceeding to collect the ground-rent $750, of which some $610 were brought into court for distribution. Primé facie this sum was sufficient to pay the taxes and costs, and it lay on the defendant to rebut this presumption. If the city failed to demand its claim from the sheriff, or to take the steps to obtain it, the lien will not follow the property in the hands of the purchaser at the sheriff’s sale. City taxes under the Act of 1824, and its supplements, are a prior but a divestible lien, unlike the fixed lien of a mortgage, which cannot be divested by a sale on a junior encumbrance, its lien is liable to be divested by any judicial sale, subject only to the restriction contained in the 6th section of the Act of 11th March 1846, which preserves the lien of so much of the tax as the proceeds of sale are insufficient to pay. This is the result of the decisions Northern Liberties v. Swain, 1 Harris 113, 202; City v. Cooke, 6 Casey 56, qualifying Gormley’s Appeal, 3 Id. 49; Duffy v. City, 6 Wright 192.

Judgment affirmed.